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    An increased focus on immigration enforcement by U.S. Immigration and Customs Enforcement (ICE) in the Trump era has more healthcare organizations of all sizes forced to take a fresh look at the issue, as well as their responsibilities and rights under federal, state and local laws.

    The summer of 2019 saw numerous operations by immigration enforcement officials, including a highly reported operation in July that targeted more than 2,000 migrants that resulted in 35 arrests.1

    Based on data provided to The Wall Street Journal in December 2019, ICE investigators opened roughly four times as many workplace investigations in the fiscal year ended Sept. 30, 2019, compared to the final year of the previous administration. Those investigations have also tended to be less frequently based on “gangs, weapons and financial crimes.”2


    The strategy of officers targeting migrants as they exit hospitals and medical centers has prompted concern from healthcare workers about where and when federal agents can enter a facility for enforcements, leading some organizations to create training and “ICE drills” to help staff and providers know what to do in the event of a raid.3

    Some clinicians also say that the increased enforcement actions are prompting some immigrant families to not seek care. A poll of healthcare providers in California serving children in immigrant families found that 42% reported an increase in skipped scheduled appointments.4

    Understanding enforcement

    Healthcare attorney David M. Glaser, JD, and immigration attorney Debra A. Schneider, JD, both of Fredrikson & Byron PA, said in September that uncertainty among healthcare workers is not unfounded given a disconnect between the reality of raids and reporting on them.

    The big headlines in summer 2019 aren’t an accurate reflection of how immigration officers have worked in the past year, Schneider said. “In reality, [raids] are going on, on a small scale, all the time,” she noted, and usually not at sensitive locations such as hospitals. Most enforcement activities happen outside courthouses, she said. More recently, ICE agents have stepped up site visits to check on students from abroad.

    It’s also important to understand which federal offices perform these actions across the roughly 20,000 ICE agents, Schneider noted:
    • Homeland Security Investigations (HSI) oversees criminal investigations and Form I-9 audits/subpoenas. Agents don’t wear ICE jackets, but they usually work in pairs and are armed.
    • Enforcement and Removal Operations (ERO) obtain warrants and conduct arrests. This segment of ICE formerly was known as the Office of Detention and Removal Operations (DRO).
    • The Office of the Principal Legal Advisor (OPLA) comprises the prosecutors used for removal proceedings.

    Sensitive locations

    In 2011, an ICE policy memo offered guidance to officers about “sensitive locations” they should not visit, including healthcare facilities, religious institutions and schools.5 This policy generally prohibited enforcement actions inside hospital and medical facilities, but allowed an exception if “exigent circumstances exist” or other law enforcement actions brought officers there, or if direct supervisor approval was granted. Such circumstances might include national security threats, terrorism or an imminent risk of destruction of evidence that is material to an ongoing criminal case, Schneider said.

    But that policy is simply guidance, Schneider cautioned. There is no legislation to make the 2011 guidance a regulatory restriction on ICE, she noted, and in her time working on immigration cases, she has seen little repercussion for violations of the policy.

    The ICE Office of Diversity and Civil Rights is one of the places you can report a violation of that policy, but since there’s no independent oversight, Schneider says going to the press may be more effective in handling an overstep.

    What clinics can do

    Glaser says it’s best to think of there being a duty to protect your patients and staff if law enforcement attempt to overstep their rights, while balancing with your normal business practice. Schneider recommends treating an ICE agent like any other visitor per your organization’s policy unless a warrant is presented, though it’s helpful to be wary if an agent attempts to intimidate staff or others into cooperating without a warrant or subpoena.

    Schneider said healthcare workers and organizations have no affirmative legal obligation to report undocumented immigrants to officials and may refuse to provide information unless requested by warrant or other court order for a specifically identified individual. Further, HIPAA generally prohibits the use or disclosure of patient information without their consent unless required by law.

    Additionally, people being questioned by ICE in public spaces have the right to remain silent.

    ICE and warrants

    If a warrant or court order is presented, Schneider recommends that an authorized staff member review that the document is valid and signed by a judge, bearing the address of the premises to be searched. A warrant also will have a time period in which it may be executed, which should be checked, as well as some disclosure of the scope of a search, from full access to a facility to a limit on one individual. In some cases, a warrant may only allow for document review related to I-9 audits.

    Beyond those recommendations, Schneider says the next step should be to contact your legal counsel to advise them, but then “get out of the way.”

    But the warrant is the crucial element. Without a warrant, an ICE search can be refused; however, Schneider notes that agents may cite probable cause of some other unlawful activity to establish the “exigent circumstances” exception, or simply wait outside the facility for patients and/or family members targeted.

    Your staff

    In some instances, a nurse or other staffer may have used false documents to become employed because they had previous deportation orders or are otherwise undocumented.

    When ICE contacts an employer for employee records, Schneider recommends asking for the signed subpoena or warrant; however, no subpoena or warrant is required to confirm or deny an individual’s employment. Schneider also suggests informing an employee if ICE requests information about him or her unless ICE otherwise orders you not to do so.

    If ICE agents are serving an I-9 subpoena, they are not entitled to staff interviews; they may ask, but you may decide, Schneider said. If your organization sponsors a doctor for a visa, consenting to show payroll and other employment documents and complying to the extent that the officers conclude the investigation is advisable, she said, because they may deny visa renewal if you are deemed noncompliant.

    Practice leaders should also be advised that U.S. Citizenship and Immigration Services (USCIS), outside the parameters of ICE, may conduct investigations related to H-1B and H-2B visa violations and various types of asylum and marriage fraud, Schneider said.

    Another area under the Trump administration in which investigations have increased outside of ICE are labor condition applications (LCAs) needed to file petitions for the H1-B visa. The enforcement authority for LCA investigations resides in the Wage and Hour Division (WHD) of the U.S. Department of Labor.6

    ICE at medical facilities

    What ICE agents can’t do:
    • Gain access to medical records without subpoena/warrant
    • Interfere with medical treatment
    • Violate the 4th Amendment (unreasonable searches and seizures).
    What ICE agents can do:
    • Stand in a public waiting area, up to the point of any limited-access areas. Officers must respect “Authorized access only” signs absent a warrant.
    • Interview someone’s sponsor and supervisor
    • Question visitors in the lobby, patients waiting admission and family members of patients in public spaces
    • Inspect files in the open (“plain view”) and listen to conversations in public areas, but you can ask the officers to leave if they don’t have a warrant.

    Pre-planning for enforcement actions

    • Establish a worksite enforcement action plan
      • Designate a representative who will be point of contact with government until legal counsel is contacted
      • Provide legal counsel’s contact information
      • Establish an internal communication plan to control the flow of information and mitigate disorder
      • Train employees on the front line on the worksite plan.

    Notes:

    1. Jordan M. “More than 2,000 migrants were targeted in raids. 35 were arrested.” The New York Times. July 23, 2019. Available from: nyti.ms/32dJyAa.
    2. Hackman M. “Workplace immigration inquiries quadruple under Trump.” The Wall Street Journal. Dec. 5, 2019. Available from: on.wsj.com/2Lr3fPo.
    3. Abraham T. “When ICE comes knocking, healthcare workers want to be prepared.” HealthcareDive. Sept. 14, 2018. Available from: bit.ly/32cjHsk.
    4. “Healthy mind, healthy future: Promoting the mental health and wellbeing of children in immigrant families.” The Children’s Partnership. September 2018. Available from: bit.ly/32avPKw.
    5. “Enforcement actions at or focused on sensitive locations.” U.S. Immigration and Customs Enforcement. Oct. 24, 2011. Available from: bit.ly/33czEjF.
    6. “Fact sheet #62U: What is the Wage and Hour Division’s enforcement authority under the H-1B program?” U.S. Department of Labor. Revised November 2016. Available from: bit.ly/328qvY5.
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